This article will deal with a ruling that was passed by the Supreme Court of Canada in 2012. The ruling is the perfect example that outlines the exact elements of proof that are necessary in order to establish that a person is in “care and control” of a motor vehicle. This is imperative, since for establishing that they were driving while impaired, it should be established that the person was indeed driving (or in danger of setting the car in motion).

This became an issue when a man was found by police officers asleep in his parked vehicle. The engine was running and he was under influence (having consumed a large quantity of alcohol at a local bar the night before), but the car was not moving. The charges pressed against him included impaired operation of a motor vehicle among others.

The irony of the situation is that he was waiting for a cab to pick him up, since he decided that he is not in a state to drive a vehicle himself. While he was waiting for the taxi to arrive, he got into his own car, turned the heating (which made it necessary to start the engine as well) and fell asleep. The man was obviously impaired by alcohol at the time that the police officers arrived, and he didn’t attempt to deny that. The issue that the court attempted to resolve was whether or not he was in “care and control” of his car.

The Supreme Court went on to clearly set out the elements of care and control:

an intentional course of conduct associated with a motor vehicle

by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit

in circumstances that create a realistic risk of danger to persons or property

The difficulty is also in defining what constitutes realistic risk of danger as opposed to risk that is theoretical or speculative. It was decided that the man’s intention to drive the vehicle is not necessary to prove, since it is recognized that a drunk person might set a car in motion unintentionally or accidentally.

It was ruled that real risk of danger may arise and be established without an intention to drive:

An inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so

An inebriated person behind the wheel may unintentionally set the vehicle in motion

Through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

The resolution was that anyone found inebriated and behind the wheel with a present ability to drive will — and should— almost invariably be convicted, making a driver sitting (or sleeping) behind the wheel of a car with a running engine an offender.

This case category presents a significant challenge to any impaired driving lawyer, by making it necessary to fight the notion of “Realistic Risk of Danger”. For someone that was found behind the wheel of a car with with a running engine and a present ability to drive, they will need to produce credible evidence to prove that there existed no realistic risk of danger to people or property, in the particular circumstances of the case, in order to escape conviction.

A good impaired driving lawyer will choose a working strategy, which can include arguing that the car was in an inoperable condition or, could pose no risk of danger due to its location or positioning. The stigma of criminal conviction should not be attached to a person using a vehicle for a fundamentally innocent purpose, like escaping the cold while waiting for a taxi. His acquittal was eventually brought about by this alternate plan of getting home that he decided on instead of driving, negating the possibility of realistic risk of damage resulting in putting the vehicle in motion.

Two things came into play here and had to be established separately. One being the plan itself – it had to be objectively concrete and reasonably reliable, and the other being whether the defendant did indeed implement it and was going to use it instead of driving away on his own car. Every case will be a fact-specific process and a strong impaired driving lawyer will be able to advise you on this as you prepare your own defence.

It is not an easy thing to prove and most people that were found in the driver’s seat of a car in a state of inebriation will be likely convicted, on the basis that they were in care and control of their motor vehicle while impaired (even if they hadn’t intended to be driving it). The way to avoid conviction in such a case, is for a defendant to produce credible evidence of having an alternate plan to get home and that they were following it. Only this defence will have a chance of rebutting the reasonable suspicion that the vehicle might be put into motion.